Breslin v. Powell

• Decision Date: 16 August 2011
• Docket Number: Sept. Term,No. 134,2010.,134
• Citation: 26 A.3d 878,421 Md. 266
• Parties: Jeffery BRESLIN, et al.v.Ronald L. POWELL, et al.
• Court: Maryland Court of Appeals

421 Md. 266

26 A.3d 878

Jeffery BRESLIN, et al.

v.Ronald L. POWELL, et al.

No. 134

Sept. Term

2010.

Court of Appeals of Maryland.

Aug. 16, 2011.

Edwin L. Keating, III (E. Philip Franke and Siobhan R. Keenan of Baxter, Baker, Sidle, Conn & Jones, P.A., Baltimore, MD), on brief, for petitioners.David M. Kopstein (Kopstein & Associates, LLC of Seabrook, MD; Jay D. Miller of Miller, Murtha & Psoras, LLC, Lutherville, MD), on brief, for respondents.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, BARBERA, JJ.HARRELL, J.

We wander here once more into the minefield of interpreting the Healthcare Malpractice Claims Act (“HCMCA”) and its requirement that a plaintiff in a medical malpractice action file a proper Certificate of Merit (“Certificate”).¹ In several cases considering whether certain Certificates failed to meet the requirements of Maryland Code (1974, 2006 Repl.Vol., 2010 Supp.), Courts & Judicial Proceedings Article (“CJ”), § 3–2A–04, we held that “the language of the [HCMCA] is clear and its meaning unambiguous.” Walzer v. Osborne, 395 Md. 563, 581, 911 A.2d 427, 437 (2006). We shall stick to our guns in that regard as we consider the requirements of a Certificate in CJ § 3–2A–04, adopted in 1986, in conjunction with the requirements of CJ § 3–2A–02,² added in 2004.

Jeffery Breslin, M.D. (“Dr. Breslin” or “Petitioner”), attacks a judgment of the Court of Special Appeals, which reversed the earlier grant of summary judgment by the Circuit Court for Baltimore City in his favor. The intermediate appellate court held that filing a Certificate of an expert that does not meet the requirements of CJ § 3–2A–02 requires dismissal, without prejudice, of the underlying claim, rather than the grant of summary judgment in favor of the defendant. According to the Court of Special Appeals, in the event of failure to meet any of the requirements for the Certificate, regardless of the provision of the HCMCA where the specific requirements appear, therefore, dismissal without prejudice is the appropriate remedy.

Petitioner claims before us that the plain language of CJ § 3–2A–02 allows for summary judgment as proper relief because CJ § 3–2A–02 does not provide explicitly a remedy for failure to meet its requirements, but states explicitly that the Maryland Rules apply to the HCMCA (Md. Rule 2–501 provides for summary judgment). Accordingly, as the argument goes, because Respondent's attesting expert, Ronald Burt, M.D. (“Dr. Burt”), an anesthesiologist, was not qualified to attest to the standard of care breached allegedly by Dr. Breslin, a vascular surgeon, pursuant to CJ § 3–2A–02, summary judgment was a proper disposition of the case. Finally, Petitioner claims that the Court of Special Appeals's decision is inconsistent with the legislative purpose behind the need for a Certificate, which is to “weed out” frivolous medical malpractice claims.

We hold that, for reasons to be explained more fully infra, the plain language of the HCMCA, reading §§ 3–2A–02 and 3–2A–04 together, is clear, and requires dismissal without prejudice of the underlying claim for the filing of a non-compliant Certificate, regardless of the particular qualification or requirement the Certificate or its attestor fails to meet. Accordingly, we affirm the judgment of the Court of Special Appeals.

FACTS AND LEGAL PROCEEDINGS

Jackie D. Powell ³ was admitted to Good Samaritan Hospital on 31 October 2002 for a hepatorenal arterial bypass procedure.⁴ Monford Wolf, M.D. (“Dr. Wolf”), a board-certified anesthesiologist, administered epidural anesthesia to Mr. Powell for the procedure while Dr. Breslin, a board-certified vascular surgeon, performed the procedure. Mr. Powell suffered an ischemic spinal cord injury, secondary to an epidural hematoma,⁵ as a result of the administration of the epidural anesthesia. Subsequent to the spinal cord injury, Mr. Powell developed paralysis from the waist down, which, according to Powell, caused ultimately Mr. Powell's death on 8 March 2004. Powell claims that Dr. Breslin deviated negligently from the standard of care by failing properly post-operatively to recognize and respond to decedent's complaints of leg pain and numbness. Allegations against various other defendants were based on failing properly to: (1) evaluate pre-operatively the decedent as a candidate for epidural anesthesia; (2) place an epidural needle and catheter in decedent's back; and (3) monitor and document the physiological effects of epidural anesthesia and catheter placement during the peri-operative period.

The present litigation, inspired by the death of Mr. Powell, originated on 30 July 2004 as a Health Claims Arbitration Proceeding pursuant to CJ § 3–2A–03. In conjunction with the claim, Powell filed with the Health Care Alternative Dispute Resolution Office (“HCADRO”) ⁶ a Certificate, ⁷ and served notice of intent to waive arbitration and transfer the action to the Circuit Court for Baltimore City. The original complaint in the Circuit Court, filed in October 2004, named as defendants: Dr. Wolf; his professional association, Hunt Valley Anesthesia Associates, P.A.; and Good Samaritan Hospital of Maryland, Inc. (“Good Samaritan Hospital”). The complaint alleged a survival claim sounding in negligence, as well as a wrongful death claim. Approximately one month later, in November 2004, Powell filed a First Amended Complaint, adding counts against Good Samaritan Hospital.

On 5 August 2005, Powell filed an Amended Statement of Claim with the HCADRO, adding as defendants Dr. Breslin and his professional association. A new Certificate accompanied this filing, which attested to departures from the standard of care by “Jeffery Breslin, M.D., ... Drs. Kremen, Breslin & Fraiman, P.A., and Good Samaritan Hospital, Inc.” Attested to by Ronald Burt, M.D. (“Dr. Burt”), a board-certified anesthesiologist, pursuant to CJ § 3–2A–02, the new Certificate stated, “I ... certify that I have had clinical experience, provided consultation relating to the clinical practice, and [/] or taught medicine in the field of Anesthesiology and/or the related field of general surgery, within five (5) years of the date of the ... acts or omissions giving rise to this claim.” Powell filed subsequently a notice to waive arbitration and, on 25 August 2005, filed a Second Amended Complaint in the Circuit Court, adding a survival claim sounding in negligence, as well as a wrongful death claim against Dr. Breslin and his professional association.

After several attempts by the defense, beginning in March 2006, to depose Dr. Burt, his deposition was taken on 6 September 2006.⁸ At the deposition, Dr. Burt was asked about his qualifications to testify and certify as to the standard of care for a vascular surgeon. The pertinent portion of the transcript revealed the following exchanges:

[Defense Counsel]: Is it fair to say that you don't hold yourself out as an expert in the field of vascular surgery?

[Dr. Burt]: That's right.

[Defense Counsel]: Do you hold yourself out as an expert in the field of general surgery?

[Dr. Burt]: No.

[Defense Counsel]: Is the only field which you hold yourself out as an expert anesthesiology?

[Dr. Burt]: Exactly.

* * *

[Defense Counsel]: With respect to the training that a vascular surgeon may or may not have regarding diagnosing epidural hematomas, would you defer to a vascular surgeon to offer testimony as to what, if any, training a vascular surgeon should have in that issue?

[Dr. Burt]: Yes.

[Defense Counsel]: And with respect to the ability of a vascular surgeon to diagnose an epidural hematoma, based on their training, would you again defer to the expertise of a vascular surgeon on that issue?

[Dr. Burt]: Yes, I would.

In light of the foregoing deposition revelation, Dr. Breslin filed a Motion to Dismiss or, in the Alternative, for Summary Judgment ⁹ on the grounds that Powell failed to comply with the requirements of CJ § 3–2A–02, mandating generally that any expert who attests in a Certificate to a departure from the standards of care on the part of a health care provider must be board-certified and have clinical, consulting, or teaching experience in the health care provider's specialty.

Powell tendered three arguments why the action should not be dismissed, despite Dr. Burt's admission in deposition that he was unqualified to attest to the ability of a vascular surgeon to detect an epidural hematoma and, thus, was not qualified to attest to the standard of care of a vascular surgeon and the alleged breach thereof.¹⁰ First, the action originated in July 2004, one year before the amendment to CJ § 3–2A–02 was enacted that added required qualifications of an expert attesting to the standard of care in a Certificate. See CJ § 3–2A–02(c)(2)(i) (“This paragraph applies to a claim or action filed on or after January 1, 2005.”). As this argument goes, the substance of the original claim was not changed by adding Dr. Breslin as a defendant; therefore, the more stringent requirements should not apply. The second argument Powell offered was that there is an overlap between the two disciplines—vascular surgery and anesthesiology—that should allow Dr. Burt to attest to and testify regarding the treatment required for an epidural hematoma. To this end, Dr. Breslin's expert witness, Dr. Gary Ruben, testified in deposition (following Dr. Burt's deposition) that vascular surgeons and anesthesiologists alike possess the knowledge and ability to diagnose a spinal hematoma. Moreover, Dr. Ruben, a vascular surgeon, was intended to be offered by the defense at trial as an expert with regard to the standard of care and treatment rendered by both Dr. Breslin and Dr. Wolf. Finally, Powell noted that he had secured a general surgeon who was prepared to testify at deposition and/or trial (and who also signed a Certificate) attesting to the departures from the standard of care by Dr. Breslin.

The Circuit Court, unpersuaded by...